The International Court of Justice today handed down its judgment in a case between Australia and Japan concerning Japanese whaling activities. There is a lot to talk about in this case (Japan lost the case by the way, and has to stop a controversial whaling practice), but I wanted to focus for a moment on the Court’s discussion of the decisions of organs of international organizations, and their relevance as subsequent agreements or practice relevant to the interpretation of related treaties.

Australia and New Zealand argued that the Court should rely on certain resolutions by the IWC [a supervisory body established by the Whaling Convention] offering a restrictive view of the permissible scope of lethal means in scientific research. Among others, Australia pointed to Resolution 1995-9, which recommends that the killing of whales “should only be permitted in exceptional circumstances where the questions address critically important issues which cannot be answered by the analysis of existing data and/or use of non-lethal research techniques.”

Australia claimed that the resolutions had to be taken into account in interpreting the Convention because they comprised “subsequent agreement between the parties regarding the interpretation of the treaty” and “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” in the sense codified by the Vienna Convention on the Law of Treaties (Articles 31(3)(a)-(b)).

Crucially, only some of the relevant resolutions were adopted by consensus. Others, including Resolution 1995-9 in particular, were adopted by mere majority, and notably without the concurrence of Japan.

This facet proved critical. The Court concluded that those resolutions adopted by consensus did not sufficiently establish Australia and New Zealand’s restrictive interpretation of the scope of permissible lethal means in scientific research. While others, like Resolution 1995-9, may have seemed more to the point, they could not be accepted here as authoritative guides to the interpretation of the Convention. In the Court’s words:

“… Australia and New Zealand overstate the legal significance of the recommendatory resolutions and Guidelines on which they rely. First, many IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan. Thus, such instruments cannot be regarded as subsequent agreement to an interpretation of Article VIII, nor as subsequent practice establishing an agreement of the parties regarding the interpretation of the treaty within the meaning of [VCLT 31(3)(a) & (b)]. (¶83).”

Thus, to generalize, while unanimous or consensus resolutions of a supervisory treaty body might be considered subsequent agreements or practice relevant to the interpretation of the underlying convention, resolutions adopted by disputed majority will not count under the general rule of interpretation.

When I read this I immediately thought about the relevance of this judgment in the context of the IAEA. As readers will know, the IAEA has a 35 member-state Board of Governors, which exercises some monitoring and verification duties under the IAEA Statute, to which a total of 162 states are parties.

As I have noted in several previous posts, the IAEA Director General, as well as some outside observers including the David Albright gang in their infamous hatchet job report on my work, have argued that the IAEA Board of Governors has the authority to interpret the IAEA Statue, as well as the bilateral safeguards treaties signed between the IAEA and member states, e.g. to determine the scope of the IAEA’s authority to investigate and assess member states’ nuclear programs. See previous discussions of this issue in posts here and here, and in some of the arguments Persbo and Ford made in our BAS Roundtable debate here.

In these posts, I have long argued that this is not a correct understanding of the competency of the IAEA BOG – i.e. that the BOG does not have any special grant of interpretive authority in any of the relevant treaty sources, and that, particularly with regard to the bilateral safeguards treaties which the IAEA has signed with states, decisions of the 35 member BOG have no particular interpretive weight.

This new ICJ judgment validates my analysis.

Again, the IAEA BOG does not have the authority to interpret the IAEA Statue or individual CSA’s, and it does not have the authority to determine the scope or content of the IAEA’s authority to investigate and assess state compliance with CSA’s. The IAEA’s authority, as that of any international organization, is a product of its constituting documents (here the IAEA Statute), other authorities specifically given to it by states (e.g. CSA’s), and its practice as accepted generally by states (see the ICJ’s 1949 Reparations case for these principles of law).

I hope that the IAEA Office of Legal Affairs reads this new ICJ judgment, and advises the Director General accordingly.

Boris Mamlyuk, a law professor at the University of Memphis, has written a fascinating piece at the Cambridge Journal of International & Comparative Law blogsite, about the threat expressed by a Russian official to invoke the force majeure clause in the New Start treaty of 2010, to restrict US inspection visits in Russia. According to Mamlyuk:

The reasons offered by Moscow for the force majeure or countermeasure or reprisal (depending on one’s viewpoint) was the imposition of targeted sanctions by the U.S. against Russian and Ukrainian nationals, and other “unfriendly acts by the U.S. and NATO” with respect to Russia’s Ukraine policy. As of March 8, 2014, these unfriendly acts presumably include: (1) U.S. Defense Secretary Chuck Hagel’s announcement on March 6, 2014 to suspend all military-to-military engagements and exercises with Russia; (2) a series of steps U.S. Defense Department will take to reinforce allies in Central and Eastern Europe during this crisis; (3) reinforcement of NATO troops in Poland and presence of a U.S. guided-missile destroyer (USS Truxtun) in the Black Sea.

I hadn’t heard about this threat before, but it does go hand in hand with even more recent threats made by Russian officials, in response to the sanctions imposed by the West against Russia related to the ongoing crisis in Ukraine. As of today, these possible retaliatory measures include Russia changing its approach to and positions regarding negotiations between the P5+1 and Iran regarding Iran’s nuclear program. According to a GSN article today:

A multilateral effort to defuse a nuclear dispute with Iran would take a back seat to Russia’s “reunification” with the Crimean Peninsula, Russian Deputy Foreign Minister Sergei Ryabkov said on Wednesday. Moscow moved this week to annex the Ukrainian territory, prompting a sanctions backlash from Western participants in the dialogue over concerns that Tehran could tap its civilian atomic capabilities to build nuclear weapons.

“We wouldn’t like to use these talks [to raise] the stakes,” Ryabkov said in a report by Interfax. “But if they force us into that, we will take retaliatory measures here as well.”

I was talking with a colleague earlier today about what shape these “retaliatory measures” might take in the context of negotiations with Iran. I suppose they might take several forms; from removing Russian support for some of the more aggressive Western negotiating positions (for example relating to PMD and the Arak heavy water reactor), to moving forward with sanctions busting efforts including building two additional reactors at Bushehr, to supplying air-defense weapons including the S-400 system to Iran. Can you think of other measures Russia might take in this context?

If you are one (as I am) that really does want there to be a deal reached between Iran and the West/IAEA concerning Iran’s nuclear program, so that sanctions on Iran can be lifted and relations progressively normalized, this news about Russia potentially changing its approach to the negotiations may be good news or bad news, depending on how far Russia takes it. If Russia continues to engage meaningfully in the negotiations, and simply tempers even further the most aggressive and unrealistic of the West’s/IAEA’s demands, e.g. regarding PMD, then that could be a good thing, and could help to produce a reasonable agreement that has the potential to endure. However, if Russia changes its position so much that it produces unbridgeable divides among the P5+1, thus making a comprehensive deal with Iran impossible, I think that would be in nobody’s best interests. So, if Russia does choose to express its indignation at Western sanctions, in the context of negotiations over Iran’s nuclear program, I hope it will do so in a way that is measured to be effective and ultimately helpful.

My book on Cyber Operations and the Use of Force in International Law has just been published by Oxford University Press. If you are interested in ordering a copy, please click here, or, if you prefer the US OUP website, here.

Here is the abstract:

The internet has changed the rules of many industries, and war is no exception. But can a computer virus be classed as an act of war? Does a Denial of Service attack count as an armed attack? And does a state have a right to self-defence when attacked in cyberspace? With the range and sophistication of cyber attacks against states showing a dramatic increase in recent times, this book investigates the traditional concepts of ‘use of force’, ‘armed attack’, and ‘armed conflict’ and asks whether existing laws created for analogue technologies can be applied to new digital developments.

The book provides a comprehensive analysis of primary documents and surrounding literature to establish whether and how existing rules on the use of force in international law apply to cyber operations. In particular, it assesses the rules of the jus ad bellum, the jus in bello, and the law of neutrality (whether based on treaty or custom), and analyses why each rule applies or does not apply in the context of cyber operations. Those rules which can be seen to apply are then discussed in relation to each specific type of cyber operation. The book addresses the key questions of whether a cyber operation amounts to a use of force and, if so, whether the victim state may exercise its right of self-defence; whether cyber operations trigger the application of international humanitarian law when they are not accompanied by traditional hostilities; what rules must be followed in the conduct of cyber hostilities; how neutrality is affected by cyber operations; and whether those conducting cyber operations are combatants, civilians, or civilians taking direct part in hostilities. The book is essential reading for everyone wanting a better understanding of how international law regulates cyber combat.

The book also contains a thought-provoking Foreword by Prof. Yoram Dinstein.

Not strictly speaking arms control law related – though obviously everything is interconnected – my dad apprised me of an article that I do think pretty well sums up the international relations situation relative to Russia’s activity in Crimea. See it here.

My favorite quote from the article, which I think is spot on in its assessment, is this:

When it comes down to it, the few diplomatic carrots that the West is willing to offer or withhold from Russia have only as much value as Putin is willing to assign them. His ability to not give a shit exceeds the West’s capacity to do anything he gives a shit about. The fact is that Russia cares a lot more about Crimea than anybody else does — except for Ukraine.

I’ve thought from the beginning that there are very few levers that the US and the West realistically can pull, and even fewer that they prudentially should pull, to influence Russia on these facts. It’s for this reason that I have thought from the beginning that the US and the West should mostly stay out of this situation. There is no genocide or other mass violation of human rights occurring that might morally demand our involvement. This is just a power play by a state that, in that region, is by far the most powerful actor. It is indeed the 2008 Georgia situation all over again. Like then, we have known from the start that we will not choose to match power with power on the ground in order to deter Russia from doing what it wants. And as the article points out, having a working relationship with Russia is too important to too many other things that we might actually, realistically accomplish for good in the world, to risk weakening it on this issue.

As I’ve said before, prudent and effective foreign policy requires knowing what cards you have to play, and playing them in the smartest way possible. Overplaying your hand is a mark of bad foreign policy, and is something that the US does not infrequently.

(* * Just a quick disclaimer to say that my approval of the main thrust of this article does not extend to its description of the details of the Iran situation * *)

Given that the Chemical Weapons Convention (CWC) has already attracted 190 states parties, the Biological and Toxin Weapons Convention (BTWC) has become something of a laggard. Not just in terms of numbers, but also regarding the time it has taken to secure the 170 ratifications or accessions. It entered into force in 1975, or 22 years before the CWC became effective.

Over the past decade and a half parties to the BTWC have stepped up their efforts to secure more ratifications and accessions. Unlike the CWC, the BTWC does not have an international implementation organisation that can take charge of universalisation initiatives or assist members with the national implementation of their treaty obligations. In 2006, the 6th BTWC Review Conference decided to establish a small Implementation Support Unit (ISU), which is embedded in the Geneva branch of the UN Office for Disarmament Affairs (UNODA), to coordinate and facilitate a variety of activities in support of treaty universalisation and implementation. Since then there has been a notable increase in both the number and effectiveness of events to turn the BTWC into a truly global prohibition on biological and toxin weapons. Several states are now on the verge of becoming a party, and chances are that some will join the convention in the course of 2014.

One such state is Nepal, a small kingdom that embraces the Himalayas. Despite having signed the convention on 10 April 1972, it is besides Myanmar the only continental Asian state not to be a party to the BTWC. The ISU and UNODA’s regional office in Kathmandu, the UN Regional Centre for Peace and Disarmament in Asia and the Pacific (UNRCPD), convened a meeting on 20–21 February to promote early ratification and discuss assistance modalities for the development of national implementation legislation as required under Article IV of the convention. The European Union funded the event through its Action Plan in support of the BTWC.

A dynamic meeting

Twelve ministries and government agencies participated in the workshop. They included foreign affairs, defence, justice, the interior, science and technology, and different law enforcement agencies, among others. Ms Ambika Devi Luitel, Officiating Foreign Secretary of Nepal, Ambassador of the European Union to Nepal Rensje Teerink and UNRCPD Director Sharon Riggle welcomed the participants and outlined the meeting goals. Mrs Jacklin Georges of the ISU laid out the types of decisions she expected to come out of the workshop in order to be able to determine the types of legislative assistance Nepal might require and an assistance calendar before the EU Action Plan expires at the end of 2014. I had the pleasure of giving a general background briefing on the BTWC and its history and an overview of the confidence-building measures parties to the BTWC are supposed to be engaged in. My colleague from VERTIC, Ms Yasemin Balci, detailed the legislative requirements under the BTWC and other legal obligations that may result from being a party to the convention and UN Security Council Resolution 1540. She also described VERTIC’s legislative assistance programme and the ways in which the organisation collaborates with the ISU.

As is usual in such workshops, most participants are exposed for the first time to the details of the BTWC, the reasons why their country should become a state party, and the responsibilities it will assume after ratification (or accession). Fortunately, the meeting itself built on an ISU-organised regional seminar on universalisation held in Kuala Lumpur, Malaysia on 2–4 September 2013. Two representatives from the Nepalese Defence Ministry attended, who at the Kathmandu workshop revealed themselves as true social entrepreneurs. More than any foreigner could have done, they were able to answer the specific questions any Nepalese official had and overcome any lingering (bureaucratic) hesitation. At the same time, Sharon Riggle, given her excellent understanding of Nepalese consultation culture, recommended a couple of times that the foreign experts withdraw from the deliberations. The (to a foreigner such as myself) animated discussions in Nepali invariably led to concrete outcomes, that enabled the ISU to come away with a concrete time line for future activities.

I left the two days of meetings with the impression that Nepal is keen on ratifying the BTWC soon. In the end, the only remaining obstacle is a fully functioning parliament. The Nepalese participants, however, felt confident about the future of their political system, and desired to proceed with the legislative preparations so as to be ready on the day their country finally becomes a full party to the BTWC.

I’m pleased to host another guest post by friend of ACL Dr. Yousaf Butt. Yousaf’s research and writing is always provocative, in the best sense, and I think provides important analysis and critique that you hear from few other voices. I especially appreciate Yousaf’s technical expertise, which few have and which is extremely useful as we lawyers try to understand and work in this highly technical issue area.

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Progress in Iran Nuclear Talks Depends on the Israeli Government Coming Clean on its Nuclear Disinformation Campaigns

Dr. Yousaf Butt, a nuclear physicist, is Director of the Emerging Technologies Program at the Cultural Intelligence Institute, a non-profit organization dedicated to promoting fact-based cultural awareness among individuals, institutions, and governments. The views expressed here are his own.

One of the sticking points in the on-going Iran nuclear negotiations is the fate of the so-called “Possible Military Dimensions” (aka “Alleged Studies”) file. This is a compendium of allegations against Iran’s nuclear program – largely gathered by third-party intelligence agencies – that the IAEA would like Iran to respond to. Not only are the allegations largely outside the IAEA legal authority and expertise (because they do not directly deal with nuclear material diversion), but Iran has not been allowed to see much of this secret evidence that is being used against it. Such a process is, of course, not consistent with normal Western legal practice. Iran has responded to what little it has been shown of the PMD file by saying that the evidence thus far shown is fabricated.

Though this Iranian response is often cast as Iran “not cooperating with the IAEA” (or “refusing to discuss the matter”), another possibility must be considered: that Iran is correct. That is, that at least some the evidence has indeed been cooked-up by an adversarial Intelligence service (or by an agent recruited by such an Intelligence service).

A wonderful new book by Gudrun Harrer on the IAEA inspections in Iraq sheds some light on which countries could be involved in fabricating and planting such fake nuclear “evidence”. On p. 185 of the book, it is confirmed that Israel provided the IAEA with false information on Laser Isotope Separation activities in Iraq. The reference for this information is the author’s interview with David Albright of ISIS (see at this insert the relevant scanned pages from the book):

Israel has, of course, long been suspected of being behind some of the forged and suspect evidence against Iran: the neutron initiators, AP graphs, etc., but until now it was hard to definitely pin the blame on that country. Thanks to David Albright at ISIS, we now know that Israel has been guilty of planting disinformation with the IAEA in the past.

Having myself analyzed some of what is (evidently) in this PMD file – with Dr. Ferenc Dalnoki-Veress of the James Martin Center for Nonproliferation Studies – I can say that the evidence is certainly of poor quality and/or an amateurish forgery. It does not look like anything a state-level research scientist would produce. There are large and conspicuous mathematical and physical errors in the material.

[The] evidence, according to the IAEA, tells us Iran embarked on a four-year program, starting around 2006, to validate the design of a device to produce a burst of neutrons that could initiate a fission chain reaction. Though I cannot say for sure what source the agency is relying on, I can say for certain that this project was earlier at the center of what appeared to be a misinformation campaign…. Mohamed ElBaradei, who was then the agency’s director general, rejected the information because there was no chain of custody for the paper, no clear source, document markings, date of issue or anything else that could establish its authenticity…

David Albright’s confirmation of Israeli nuclear disinformation goes hand-in-glove with statements from former IAEA director, and Nobel Prize winner, Mohammed ElBaradei. In his biography, ElBaradei says that the documents that the IAEA had about the alleged neutron initiators in Iran circa 2008 were given to the Agency by Israel. He further states that Israel gave him permission to show the evidence to Iran.

So the question is, why has the IAEA not cooperated with Iran in evaluating material like they did with Iraq circa 1995, in the incident mentioned by Harrer?

Iran could be genuinely helpful if they were allowed to see the original evidence and comment on it. When the IAEA worked with Iraq to evaluate documents, the Iraqis helpfully pointed out mistakes that the IAEA could independently confirm. Isn’t that the example we would like to see with Iran?

Being charged with secret evidence also goes against every notion of Western justice. The IAEA either needs to drop the PMD file, or amend their procedures.

Over the past weekend, it was also confirmed that Israel masterminded the assassinations of Iranian nuclear scientists. These assassinations, too, perhaps were carried out with local MEK collaboration. If the Israeli government is capable of assassinating civilian Iranian scientists, would fabricating nuclear intel on Iran trouble their consciences? Presumably not. Especially as they have done it in the past, according to David Albright at ISIS.

Before further pursuing Iran on the PMD file – which may contain substantial forged evidence – it would make sense to ask Israel to come clean about any fabricated intelligence it may have planted with the IAEA. It is quite possible that some of the PMD file is not fake. Israel’s assistance and cooperation in identifying what is fake and what is not would be most helpful. If David Albright of ISIS has further insight into this – as he did in the Iraqi case – his involvement would also, of course, be very welcome.

It is becoming increasingly difficult to give credibility to hyperbolic Israeli statements about Iran’s underhandedness in pursuing its nuclear program, when Israel itself has been underhanded in pursuing clandestine disinformation campaigns against NPT states, while itself remaining resolutely outside the NPT.

There are several points for the IAEA to consider in light of these recent developments:

1. Should the IAEA reject all evidence from Israel against Iran and other adversarial states now?

2. Should the IAEA, generally, not accept intelligence from non-NPT states?

3. The IAEA should show Iran any evidence it wants an Iranian response on. Anything less is not consistent with Western notions of justice. Furthermore such cooperation could unveil the origin of any possible forgeries in the PMD file.

4. The IAEA and the US should ask Israel to come clean on any fabricated “evidence” it may have inserted into the PMD file.

5. As I have suggested previously, it would be best to simply drop the PMD file as it relates to decade old unauthenticated allegations of possible research. It is not even clear that what is in the PMD file – even if true – would be a violation of the NPT or the safeguards agreement.

6. If the IAEA really wants to pursue the content of the PMD in a legal way they can initiate special inspections or undertake arbitration as provided for in the CSA. The IAEA does not even have the technical expertise in-house to undertake investigations of missiles, warheads etc. which are mentioned in the PMD file.

David Albright must be commended for his helpful insight into fabricated Israeli intelligence in Iraq, and hopefully can assist in tracking down similar disinformation in the case of Iran.

Relatedly, we must thank him and ISIS also for showing the international community expensive satellite pictures of Parchin, in which one can see that west of the paving activity, the site is untouched, and so the IAEA could get environmental samples there (if they even needed those). This undercuts ISIS’ own conclusion that the site has been magically “sanitized” by paving. Normally, of course, the IAEA would take such swipe samples from within the buildings where any suspect U naturally collects: in the corners and at the places where the walls meet the floor.

Document 3: Five page document in English describing experimentation undertaken with a complex multipoint initiation system to detonate a substantial amount of high explosive in hemispherical geometry and to monitor the development of the detonation wave in that high explosive using a considerable number of diagnostic probes.

And the alleged weapons’ studies annex Nov 2011:

43. Information provided to the Agency by the same Member State referred to in the previous paragraph describes the multipoint initiation concept referred to above as being used by Iran in at least one large scale experiment in 2003 to initiate a high explosive charge in the form of a hemispherical shell. [……] Further information provided to the Agency by the same Member State indicates that the large scale high explosive experiments were conducted by Iran in the region of Marivan.

So what is the point of carrying out environmental sampling at Parchin (where chamber experiments are alleged) and not at Marivan where open-air experiments were allegedly done? Is the IAEA – and ISIS – confused between Marivan and Parchin?

And, certainly, Iran should be shown any evidence it is being asked to answer to by the IAEA. The Agency should also spend about half an hour and check whether the site it is interested in for environmental sampling is Marivan or Parchin. Environmental sampling at Parchin makes little sense. At Parchin, swipes would be taken from within the buildings since chamber-based implosions are alleged. While it is at it, the IAEA should also review the technical basis of their conclusions on Syria.

It is hard to take the Agency seriously when it persists in being blatantly unprofessional.

Dr Jim Walsh, a research associate at MIT, has an excellent suggestion about what to do with Iran’s “PMD” file – as paraphrased by Mark Hibbs: “If the nuclear activities were in the past, I don’t care. It’s dead, and it’s regretful, but let’s do a deal with Iran that moves forward.”

But before we do that, the IAEA should ask Israel to come clean about its potential role in fabricating some of the “evidence” within the PMD file.